INTELLECTUAL PROPERTYThe Copyright Game Is Overby K. Matthew Dames
Another legal battle, another “win.” In early October, a federal trial court judge ruled favorably for higher education in The Authors Guild’s copyright infringement case against HathiTrust and affiliated universities. About a year ago, The Authors Guild, various international authors’ rights organizations, and 12 individual authors sued HathiTrust, Cornell University, and the presidents of the universities of Michigan, California, Wisconsin, and Indiana, claiming that HathiTrust’s online storage, searchability, and public availability of a digital corpus developed as part of the Google Books scanning project constituted copyright infringement.

Unlike Judge Orinda Evans’ decision in the publishers’ lawsuit against Georgia State University, the HathiTrust decision was issued from the publishers’ home court—the Southern District of New York—a jurisdiction that routinely decides important copyright cases. (For example, the Google Book Search litigation started in the Southern District of New York.) Further, Judge Harold Baer’s 23-page opinion so thoroughly eviscerates the plaintiffs’ main arguments that we could wonder aloud why (other than an unshakable adherence to the piracy paradigm) The Authors Guild filed the case at all. It is possible The Authors Guild will appeal, especially since some of Baer’s opinion (specifically, his holding that search indexing constitutes a fair use) affects its ongoing litigation against Google in the books case.

Still, HathiTrust constitutes a win for libraries and higher education. But a win is not a victory, especially because the copyright game is over.

A Trend Does Not Equal a Paradigm Shift

Soon after the HathiTrust decision was made public, Michael Madison, law professor (Fordham University School of Law), opined that educational uses of computer technology are “becoming the new copyright normal,” with courts seemingly becoming highly sympathetic to the idea that universities ought to be allowed to translate their traditional research and teaching models to use digital delivery technologies. For this and other doctrinal reasons, James Grimmelmann, another law professor (New York Law School), said that many in the future may look back at the HathiTrust decision and deem it a landmark case. Together, these observations pushed Grimmelmann to suggest a copyright paradigm shift is brewing, whereby uses that traditionally have been deemed infringing now are being reconsidered as allowable under fair use or some statutory limitation.

This idea of a “new copyright normal” is particularly attractive given the current copyright climate, which has become politicized like never before. “I personally think the war-time mentality has encouraged us to do a fair amount of damage to the fabric of copyright law,” wrote Jessica Litman, another law professor (University of Michigan Law School), in 2009. “[T]he copyright war has been intensely polarizing. … The middle ground seems to have disappeared. Anyone who works or writes in the copyright field is either ‘one of us’ or ‘one of them.’”

Litman’s observation seems to manifest itself on my Twitter feed (@Copycense). Based upon no empirical evidence, it seems my subscriber total rises or drops in direct correlation to my posting a tweet that the public can perceive as being for or against copyright protection. Further, copyright’s politicization allows everyone to rush to declare winners and losers, for one side to see the decisions in the UCLA video case, the Georgia State e-reserves case, and the HathiTrust case as justifying “our” position or “their” position, depending upon our viewpoint. Never has the political adage “where you stand depends upon where you sit” had more relevance in copyright than now.

But step away from these three recent cases and pit them against the backdrop of the recent past. We don’t need to flash back 300 years to the beginnings of the copyright system; we need less than 20. Examine closely the holdings in MAI Systems Corp. v. Peak Computer, Inc. (see my IT column, “Pay-Per and Georgia State University,” October 2012); ProCD, Inc. v. Zeidenberg (a 1996 case essentially holding that license contract language overrides copyright considerations); the Digital Millennium Copyright Act; the consolidation of the media and cultural industries into global, publicly held corporations; and the “harmonization” of U.S. copyright law into a global standard through the trade process. When seen against these benchmarks, the three recent cases are the equivalent of skipping stones across the Pacific.

Even more importantly, substantive, revolutionary, and paradigmatic change nearly never occurs from within a particular ecosystem. The UCLA, Georgia State, and HathiTrust holdings were judicial opinions made by judges who, above all else, almost always choose to bind themselves to precedent pursuant to the doctrine of stare decisis. As Chief Justice John J. Roberts Jr. said at his 1995 confirmation hearing, “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire ... I will remember that it’s my job to call balls and strikes and not to pitch or bat.” As a result, federal court judges never will be the ones to lead the type of revolution needed to spark substantive and lasting copyright reform. (There is a way substantive copyright reform can occur, but that is both a difficult road and a subject for another column.)

Licensing and Open Access

In other words, you rarely “make new rules” (upset the setup) from inside that setup. The last chance to address substantive copyright reform occurred in the early 1990s, when the Clinton administration was shopping around the white paper amid its National Information Infrastructure initiative. Instead, the administration made its decisions with traditionally vested stakeholders driving the legislative bus without public input. That was when the piracy paradigm became finalized.

It is easy to suggest the SOPA (Stop Online Piracy Act)/PIPA (Protect IP Act) battle and the Arab Spring in early 2011 mean that the stealthy approach to policymaking would never occur today given the increased access to social networking tools that many citizens now have. Still, both situations have extenuating circumstances. There is ample evidence that SOPA/PIPA was more about determining industry sector supremacy among like-minded multinational, publicly held corporations than it was a reaction to American citizen upset. And we now know about the U.S. government’s heavy investment in (and support of) the Arab Spring movement.

There remains work to do to keep copyright law and policy from becoming a complete farce, and learning copyright is critical to understanding the moves the big players are making elsewhere. But for the most part, the notion of substantively changing copyright law (especially through the legislative or judicial branches) is folly and a waste of resources.

By extension, this means the UCLA, Georgia State, and HathiTrust decisions are irrelevant because they represent minor, insignificant outliers set against a broader paradigm that has been set for centuries. As someone who has been involved with copyright since I was a child, I feel odd even saying this, but the copyright game is over. Licensing and open access, respectively, are the current and future battlegrounds for information dissemination and access to knowledge. They are now the battlegrounds in no small part because they represent different, contemporary systems that govern access to knowledge.

Licensing still can be saved for some measure of equality, and the future of open access has yet to be determined. But copyright? By and large, that’s where the ball was. Anyone with a stake in access to knowledge must be where the ball is and where it will be.

K. Matthew Dames, Ph.D., J.D., M.S., is the copyright and information policy advisor at Syracuse University and a research fellow at Michigan State’s James H. and Mary B. Quello Center for Telecommunication Management and Law. Send your comments about this article to itletters@infotoday.com.